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Kim Foxx Was Not Wrong: The Lonely Road Of An Elected Prosecutor Of Color

This outcome happens every day in America, so why the backlash?

| April 11 2019,

4:47 pm

Much has been made over Cook County (Chicago) State’s Attorney Kim Foxx’s handling of the case involving Empire star Jussie Smollett. Initially, Smollett was charged with 16 criminal counts for allegedly faking a hate crime, with himself as the victim. Foxx has been attacked for being too lenient, and for having contact with representatives of Smollett’s camp.

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As a former prosecutor who handled homicides and violent crimes, it’s time to clear up some myths and misconceptions.

A prosecutor is expected to speak to a victim

While Foxx did have contact with Smollett’s camp when the case initially began, she ceased contact when it became clear that Smollett was being investigated as a defendant. It is impossible to investigate a case and determine its veracity without speaking to the victim. With a high profile victim, you often end up speaking to intermediaries. If it turns out the victim is not truly a victim, you end contact and prosecute if there is enough evidence. This is normal, and in criminal cases, there are twists and turns that one can’t predict.

I once had a homicide case that I thought was a slam dunk. I had two eyewitnesses (army guys) that were on point in their testimony. I spoke with them multiple times over the course of several months as I prepared the case for trial. While they were giving a sworn statement to the defense attorney on the military base (a deposition) shortly before trial, it turned out they actually helped in the homicide. Yes, you read that right. I literally put my hands on one of them and cussed them out so badly that it drew the attention of other personnel on the base. Since I had no other corroborating evidence besides a statement, I could not charge them for the murder. Looking back, my reaction was probably not the best, but I was so furious - and one came very close to wetting his pants — which was about the only justice I could get for the loss of a life and the wasted time. It was a long plane ride home, and the case was resolved with a plea.

Recusal comes in many forms

Recusal is when an elected prosecutor declines to handle a case. It is usually as a result of a conflict of interest, where the prosecutor could have some stake in the outcome of the case — for instance, the victim or defendant works in the office. There is no standard best practice for recusal - it varies by office and situation. An elected prosecutor can ask for the governor of the state to appoint a special prosecutor; the case can be sent to another neighboring jurisdiction, or an office can “Chinese wall” the prosecutor with the conflict. A Chinese wall means that the prosecutor is kept out of all discussions of the case, and is not permitted to be involved in any way. Chinese walls are more difficult in a smaller office (as in less than 10 attorneys). In large offices (Chicago has close to 900 attorneys), conflicts occur daily. One common scenario is where defense attorneys and police officers are married to prosecutors in the office where they have cases - all that generally happens is a Chinese wall. A recent high profile example of a Chinese wall was the Russia investigation when Jeff Sessions was Attorney General. He recused himself, leaving Deputy Attorney General Rod Rosenstein to supervise the work of special prosecutor Robert Mueller. By having her deputy handle the Smollett case and staying out of any further discussions on the case, Foxx did nothing wrong.

Diversion happens daily and no admission of guilt is required

Many have made an issue over the resolution in this case. Smollett performed community services hours and forfeited $10,000; in exchange, the charges against him were dismissed. The type of plea to Smollett’s case happens daily across the country. If you have no criminal history, you can pay a fine, do some community service hours and call it good in most jurisdictions (assuming it is not a violent crime). If you complete the terms as agreed, the charges are dropped, and you have the opportunity to have the arrest sealed (again, depending on the charges as well as the rules in your state). Unlike a traditional plea agreement, no admission of guilt is needed for a diversion program. Pleas or programs are also used when a prosecutor’s case is falling apart, as I believe may have happened here (despite claims to the contrary).

Cops and prosecutors do not always agree

Cops and prosecutors do disagree. I can remember many times in my 16-year career as a prosecutor where the cops investigating the case disagreed with my assessment and the plea offered. That’s just the nature of the beast. Witnesses stories change, or they disappear; evidence that at first blush seems to be conclusive may have another explanation having nothing to do with criminal intent. Best practice (and courtesy) suggests that a prosecutor let the investigating officers know before closing the case. But at the end of the day, it is the prosecutor who has to stand up in court and prove the case beyond a reasonable doubt. If s/he can’t, then the case must be dropped.

So what’s wrong here?

What is unusual is that 95% of elected prosecutors are white; 79% of them are white men. When they plea a case against public sentiment, or misstep in some way, the power structure seems more forgiving - to the point that it barely hits national news (with the exception charging decisions in the killing of unarmed people of color by police). However, when prosecutors of color make moves (Marilyn Mosby, Aramis Ayala, even Kamala Harris), the backlash is fast and furious. Kim Foxx, Cook County’s first African American female top prosecutor, has now become a target via words and deeds. An organization that wants to educate the public on the role of a prosecutor has, for the first time in recent history, come out swinging against an elected prosecutor. Of all of the many recent high profile cases and issues, why her? The investigating police department is the same department that may have tried to destroy evidence in the 2015 Laquan McDonald police shooting case and shot Black Panther Fred Hampton in his own bed in 1969. The racism in that department runs long and deep. The new police chief is a man of color, but rank and file officers remain the same. The fact that they are protesting while crying foul rings hollow to me.

What it boils down to is the evidence. To be clear, I cannot weigh in on Smollett's guilt or innocence. To me, there is simply not enough evidence that has been made public for me to truly assess this. There was a check that has a reasonable explanation and redacted phone records. The key to this case would be the testimony of the two brothers who allegedly helped Smollett— without them there is no case.

At the end of the day, Jussie Smollett has been found guilty in the court of public opinion; but that is not a court of law.

Kim Foxx has been found guilty by the Chicago power structure. But as long as the people of Chicago support her, she still has a chance to do what she was elected to do.

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